from the why-you-don't-base-things-on-accusations dept

One of our biggest problems with the various "three strikes" or similar programs is the fact that they're all based entirely on accusations not convictions. You would think, in this day and age of bogus copyright claims, that people would realize why that might be a problem. Down in New Zealand, where they implemented a three strikes plan not too long ago, the local version of the RIAA (the RIANZ) has been pushing to bring "music pirates" to the copyright tribunal to pay for their supposed infringement. However, as expected, it's looking like all that's happening is the record labels are being left with egg on their face yet again.

That's because RIANZ had to hastily drop one of the cases after it became clear that the person they were accusing of file sharing... didn't even know what file sharing was. Nice job, record labels! There were multiple problems with the case:

The defendant was a student in a flatting situation and was the account holder for the flat's shared internet account. She has never used file sharing software and we had to explain to her what it was and how it worked. It seems likely that one of her flatmates had it installed.

The flat never received the first detection notice and they didn't really understand the second warning notice. She did show it to her flatmates and asked them to stop doing anything they were doing. They denied doing anything, so she checked to make sure that their wireless network was properly protected by a password in case they had been hacked. The third notice was a mess - addressed to the wrong person, Telecom eventually withdrew it and replaced it with another one.

Then came the notice from the Ministry of Justice that action was being taken against the account holder.

In other words, a complete disaster, top to bottom. And for this, the RIANZ demanded $2669.25 in penalties. How'd they get that number?

$1075.50 as the cost of the music.

$373.75 to repay the cost of the notices and tribunal fee.

$1250 as a deterrent.

The cost of the music was calculated as being five tracks (total number of notices) multiplied by the $2.39 cost of each track on the iTunes store. The observant may notice that this works out to $11.95 rather than $1075.50. RIANZ decided, based on some self-serving research, that each track had probably been downloaded 90 times and therefore the cost should be multipled by 90. There is no basis in the Copyright Act or Tribunal regulations for this claim.

While the student in question ended up cancelling the internet account for the entire flat -- making life difficult for everyone there -- she eventually worked with Tech Liberty New Zealand to defend her. After Tech Liberty highlighted the multiple problems with the case, RIANZ -- realizing that it had screwed up royally -- decided to just drop it.

It would be funny to look at how often they make accusations, only to walk away when they realize they're going to lose. That is, it would be funny if it didn't seriously mess with people's lives. You'd think, given how often false accusations are levied, that lawmakers would know better than to pass a law that allows for such actions to be taken based entirely on accusations without real evidence.

As Tech Liberty notes:

This case exemplifies just how unjust and unfair the law is.

If you are the account holder you will be responsible for the actions of anyone using the account. There is no way for non-technical people to monitor or control what their flatmates or other people sharing the internet connection are doing. Even IT professionals would struggle to do so with the normal tools available on a home network.

The provisions in the law allowing for an internet account to be cut off have been suspended for now. This was because it is becoming increasingly clear that an internet account is critical for engaging in modern society. However, the effect of this law was still the same - the defendant panicked at these allegations and cancelled her account, cutting off her entire flat from the internet.

The law is meant to act as a deterrent to infringing copyright, but the way it is written it is actually an incentive. "Just use a connection that doesn't have your name on the account and they'll be be the one who is penalised!" The only deterrent is to becoming an internet account holder.

Re:

Worse than the troll activity is the reaction we can expect from the enforcement lobby. I'm predicting either conveniently forgetting about it at all, blaming the government/ISP who was responsible for sending the messages which got messed up, or simply saying this was a fluke, one-off event that could never happen again.

The sad thing is, they will be able to convince their paymasters the latter is true. If past experience is anything to go by, it will take more than one ridiculous (near-)injustice for them to stop.

Re: Re:

worth noting that the 'average New Zealander's HOUSEHOLD (not the individual) is highly unlikely to have over 2000 NZD in savings at any given time (and likely plenty of debts) college savings? nope. tertiary education is funded mostly by Loans and government allowances. mortgages and various other debts tend to eat the money that would otherwise be saved.

Re: Re:

I believe that came from one case where the student pointed out that she didn't have that much money to begin with. The RIAA pretty much told her "too damn bad, our artists are starving, go fuck yourself".

Seriously, if the industry is dying and they have so many starving artists, why doesn't the RIAA just interview them? It'd still be propaganda, but it might actually WORK at convincing people that the non-existent damage actually exists.

Or maybe the reason that they haven't done so, is because they CAN'T find any. After all their industry has been dying ever since the player piano was invented.

Re:

You say that as if they actually care whether or not their actions could totally ruin someone. As long as the extortion agency itself isn't being negatively affected, they could not care less what damage their actions cause to other people.

Re: 'hefty'

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Tribunals are a bit weird. they're not entirely adversarial and are more about dispute resolution than anything. basically, if the RIANZ dropped it, and the other party isn't making a fuss, the dispute is resolved so the issue's over. (on the other hand, if a tribunal makes a ruling on the actions to be taken to resolve a dispute and one party or the other fails to follow that ruling they then end up in court facing, as i understand it, the Crown, for failure to comply. appeals can also be lodged and go through the normal court process.)

The "times 90" bit is absurd. If you're going go after people for downloading music, that's one thing. But those other 90 people? Go after them.

It would be like getting stopped for speeding and instead of getting a ticket for $100 you got one for $10,000 in order to pay for the other 100 speeders the officer failed to catch while he was dealing with you.

Re: Three Strikes should work both ways

Re: Re: Three Strikes should work both ways

It would work. If they represent the copyright holders, and are doing this on behalf of the copyright holders, then the copyright holders should lose their copyrights.

If they are not acting on behalf of the copyright holders, then they must be breaking a law for suing or threatening to sue people without having proper legal standing to sue. In this case, then throw them in jail. (And patent the key.)

Re: Three Strikes should work both ways

Re: Re: Three Strikes should work both ways

Then they should be a whole lot more careful before making accusations. Just because they would blow 3 strikes really fast doesn't mean that it is a bad idea.

They would argue the same in reverse. If Jane Pirate said that they should not get to have a 3 strikes law because she would blow through that really fast, they wouldn't suddenly change their minds and think 3 strikes is a bad idea.

Interesting insight

I like the fact that the cited article points out that these kind of laws really send the wrong message - not "don't infringe", but "don't have an Internet account" (what was the result here - we know that the account-holder cancelled her account. Do you think the actual infringers stopped infringing ?). The simple fact is that there's no way to guarantee that your internet account can't be used by somebody to infringe copyright, so the only way to be sure to avoid these kind of things is not to have such an account.

Want to bet that the NZ government also has a policy to "bridge the digital divide", or "get more people online" or something similar ?

Re: Interesting insight

possibly, though not that i know of.
they Are putting effort into upgrading the infrastructure though... and making it easier and easier to deal with them online, and more and more of a pain in the arse to do a lot of things any other way. ... which is why the possibility of losing your internet connection over this was deemed non-viable, as i understand it.

i wonder how long it would be before the ISPs started moaning about lost business or even failing business because the 'deterrent' encouraged people who already had one to cancel their account and those that were considering getting one, didn't bother. the entertainment industries wouldn't give a toss about any other business failing but by Christ would they be the first to moan if things were reversed. perhaps the road to take is for ISPs to sue the entertainment industries for anti competitive behaviour, forcing them to lose more money having them back them over the '3 strikes regime'

Re: Re:

This Is Why

This is exactly why it's imperative that the accused not be given a chance to defend themselves. If they can defend themselves, they can exonerate themselves and make the entire ordeal a huge waste of everyone's time and money. Nobody wants a huge waste of time and money, right?

Re: Re:

Erm, this probably provides a great example of why this sort of thing will always be doomed to failure:

"They denied doing anything, so she checked to make sure that their wireless network was properly protected by a password in case they had been hacked."

Yeah... if you've been hacked that means they have your password, so such a check is irrelevant. Depending on the encryption you're using, they can hack a new password in minutes if you change it. The novice user will never know, not until they get the nastygram in the mail. This user took due diligence in making sure her connection was secured, but the only way to completely secure your network is to take it offline.

As I've said before, if these programs were to become widespread and successful, the only thing it will really encourage is learning how to hack your neighbour's wireless so you don't get the takedown notices.

Oh, and I wonder how much money was lost to the local economy as a result of her removing her internet (removing customers from not only the ISP and legal digital services but also online banks, travel sites, shopping, etc.)? Almost certainly more real money than was ever lost by whoever was doing the sharing.

Wow Mr Masnick, luckily we only believe a fraction of what we read. The case was NOT dropped because it was 'clear the accused didn't file share'. Far from the truth. I don't know where you heard that crap, but utter crap it is!!! If you heard that from 'her' then that certain "innocent" someone has been telling you big fat porkies...